• He said Magoha should ensure the reopening is done by observing health and safety guidelines.
• He said the CS was wrong and violated the Basic Education Act by acting unilaterally without involving the National Education Board and the county education boards.
A judge has ordered for the reopening of all schools in the next 60 days and banned community-based learning programme introduced by the government.
Justice James Makau further held that Education Cabinet Secretary George Magoha had no power to order the reopening of schools under the Basic Education Act.
He said Magoha should ensure the reopening is done by observing health and safety guidelines. He said the CS was wrong and violated the Basic Education Act by acting unilaterally without involving the National Education Board and the county education boards.
"An order of injunction be and is hereby issued restraining the 1st respondent (CS) by himself, his assistants and partners, agents, servants or otherwise howsoever together with the 1st interested party, Teacher Service Commission from undertaking or further executing the community-based learning project in schools and learning institutions across Kenya as announced by the 1st on July 30, 2020," the judge said.
He added that the state violated the rights of learners and failed to demonstrate that the community-based learning programme was within the law.
Judge Makau's decision arose out of a case filed by a parent, Joseph Enock Aura, who complained about the harm caused by the indefinite closure of schools due to Covid-19.
Aura argued that since the state ordered for the closure of schools in March, his children and others across the country had been at home indefinitely.
“I have lodged these proceedings as a parent on behalf of my children and on behalf of millions of voiceless children enrolled similarly in learning institutions across the country,” Aura said.
The father of three said in-person learning is the best when it comes to the education of children. In this case, the legitimacy and constitutionality of the community-based learning programme were questioned.
The court was told that the programme thwarted the legitimate expectations of the 2020 candidates and was unilaterally commenced as there were no consultations with stakeholders. It was also allegedly based on the Nyumba Kumi socialist/communist concept.
Through lawyer Harrison Kinyanjui, Aura argued that many countries that had a high number of Covid-19 cases had since reopened their schools and Kenya should have followed suit.
But the state said there was public participation to the best of its ability, ensuring that the containment measures of Covid 19 were not being undermined.
In compliance with the requirement of public participation, the CS is said to have appointed a 16-member Covid-19 Education Response Team which drew its membership from relevant trade unions, county governments, curriculum development institutions, the Muslim Education Council, and the National Council of Churches of Kenya, among other institutions.